M v M [1988] HCA 68; (1988) 166 CLR 69; (1988) 82 ALR 577; (1988) 63 ALJR 108 (8 December 1988)

HIGH COURT OF AUSTRALIA

M. v. M.
F.C. 88/063

High Court of Australia
Mason C.J.(1), Brennan(1), Dawson(1), Toohey(1) and Gaudron(1) JJ.

CATCHWORDS

HEARING

Canberra
8:12:1988

DECISION

MASON C.J., BRENNAN, DAWSON, TOOHEY AND GAUDRON JJ. This is an appeal by the husband and father of the daughter of the marriage, born on 6 December 1982, against an order of the Full Court of the Family Court (Baker and Maxwell JJ.; Nicholson C.J. dissenting) dismissing his appeal from an order of Gun J. in the Family Court. By that order Gun J. discharged an order for custody which had been made by McGovern J. on 15 January 1987 in favour of the respondent wife and mother until further order and ordered that the wife have the guardianship and custody of the child. His Honour also discharged an order which had been made by Bulbeck J. on 5 December 1986 for access on the part of the father. In the appeal to this Court the father seeks an order that he be granted access to the child.

2. Central to the case are the wife's allegations that the father has sexually abused the child and that the child's welfare will be put at further risk. At first instance Gun J. was not satisfied that the father had so abused the child. On the other hand, he was not satisfied that the father had not so abused the child. He considered that there was a possibility that the child had been sexually abused by the husband and that in the interests of the child he should eliminate the risk of such abuse by denying access to the husband. He also rejected the suggestion that the husband should have supervised access. In the Full Court the majority concluded that Gun J. applied the correct principles and that there was ample evidence to support the findings which he made. Nicholson C.J. dissented on the ground that an order for access should not be refused because there was a mere possibility that access would expose a child to sexual abuse. He considered that "(t)here must be a real or substantial risk of such abuse occurring as a matter of practical reality." His Honour would have referred the matter back to the primary judge for further consideration because he had not applied the correct test.

3. The appellant's case in this Court is that Nicholson C.J.'s statement of the test to be applied was correct and that we should send the matter back to the primary judge to enable him to determine the issues and make orders in the light of that test. Certainly, the appeal does not present any issue of fact which this Court needs to determine. Accordingly, we shall content ourselves with a relatively brief summary of the facts and some references to the judgments at first instance and on appeal in order to place the apparent difference of judicial opinion as to the correct test to be applied in its proper perspective.

4. The parties married in New Zealand on 16 June 1982 and separated finally on 26 November 1986. The child who is the subject of these proceedings is the only child of the union. The wife was previously married and had a son by that marriage. He was born on 1 July 1976 and was part of the household during the parties' cohabitation.

5. Initially the parties lived in New Zealand. Their relationship was difficult. The difficulty was partly caused by the husband's attitude to the son. The parties separated in November 1983 when the wife left the matrimonial home, taking both children with her. However, she returned the same day and cohabitation continued until June 1986. Then the wife left, taking the son with her but leaving the daughter with the husband, claiming that he refused to allow her to take the daughter with her. The wife travelled to Adelaide, joining other members of her family there.

6. The husband placed the daughter in the care of his sister at Wanganui and his mother assisted with the care of the child. In August 1986 he travelled to Adelaide with the daughter. There was a reconciliation. The parties lived together until November 1986 when the wife finally left, taking both children with her.

7. Two days later she applied for guardianship and custody of the daughter, together with ancillary relief relating to non-molestation and counselling. She sought an order that the husband have supervised access to the daughter and that a report be made with respect to that access. The affidavit in support of the application did not disclose the basis on which supervised access was sought. The husband made a cross-application seeking guardianship, custody and supervised access for the wife with a report on that access. Interim access was granted to the husband.

8. On 15 January 1987 McGovern J. made an order for custody in favour of the wife until further order and further ordered that a family report be prepared under s.62A(1) of the Family Law Act 1975 (Cth) ("the Act"). On 27 January the wife applied for an order suspending or discharging the order for access in favour of the husband and in her supporting affidavit claimed that the husband had sexually abused the child.

9. It seems that, at the hearing before Gun J., sexual abuse of the child was the one ground relied on as justifying deprivation of the husband's access. Otherwise there appears to have been no suggestion of difficulty in the relationship between the husband and the daughter. The husband denied that there had been sexual abuse. The trial judge found nothing in his demeanour and in his answers to questions to suggest that he was not telling the truth.

10. His Honour found that the wife first considered early in December 1986 the possibility that the husband had sexually abused the child. The wife was then living in the Irene Women's Shelter at Edwardstown. Following access by the husband on 10 January 1987, the wife took the child to the Sexual Assault Referral Centre at the Queen Elizabeth Hospital and to the Flinders Medical Centre. The examination at the Medical Centre was inconclusive and during the interview at the Referral Centre the child made no disclosures. However, the wife stated that the child spoke to her of acts indicating sexual abuse on the part of the husband. Although the child did not make any such disclosure to Dr Moody and Dr Thomas at the Referral Centre, she did make disclosures of sexual abuse by the husband to Constable Anderson on 2 February 1987. The primary judge found that this disclosure was made under some pressure from Constable Anderson, who had been briefed by the wife who herself had been pressing the child about the matter. His Honour found that Constable Anderson, an officer experienced in investigating allegations of sexual assault, had not intimidated the child in any way.

11. However, Miss Fitzgerald, a clinical psychologist, who interviewed the child on 22 January and 18 February 1987 and saw the child on a number of occasions thereafter, reported that the child spoke of sexual abuse by the father. Miss Fitzgerald concluded that the child had been sexually abused and that the father was the perpetrator. Miss Fitzgerald had worked extensively as a psychologist in the area of child sexual abuse in the previous two or three years. Gun J. accepted her as a person qualified to express an opinion as to whether the child had been sexually abused. But she was not in a position to say that the father was the perpetrator. As it happens, no objection was taken to her evidence in that regard; rather it was made the subject of cross-examination. In any event, as will appear, Gun J. was not satisfied that the father had sexually abused the child.

12. Physical examination of the child showed that the vaginal entrance was open and appeared widened and that the vulva was reddened. But that was all.

13. The critical passage in the primary judge's judgment dealing with the standard of proof is as follows:
"(M)y task is to evaluate the evidence adduced and
decide whether or not I am satisfied on the balance
of probabilities that the husband has sexually
abused the child. If I am satisfied that the
husband did sexually abuse the child, I would
discharge the order for access. If I am not
satisfied on the balance of probabilities that the
husband has sexually abused the child but I am not
sure that he did not do so, in other words if I
have lingering doubts, it is my view that I should
discharge the order for access on the ground that
no risk or possible risk should be taken which
would endanger the welfare of the child."
14. The judge concluded that, after someone at the Shelter had suggested the possibility that the child had been sexually abused, the wife was on the qui vive for any indication of such abuse. His Honour found that she frequently interrogated the child in an attempt to find such indications. Although at first the wife did not extract any such evidence, she later succeeded in obtaining answers indicating abuse, after applying considerable pressure and asking leading questions. His Honour was not prepared to find that the wife did not form a genuine belief that the child may have been sexually abused by the husband. Nor was his Honour prepared to say that her evidence of the statements made by the child was manufactured.

15. Crucial to the primary judge's ultimate conclusion was his acceptance of Miss Fitzgerald's evidence. However, his Honour was not satisfied on the balance of probabilities that the husband had sexually abused the child. His Honour said:

"My reasons for that are the fact that neither
Drs Moody nor Connon was able to find any evidence
that the child had been sexually abused, the
conflicting evidence of the wife as to when and why
she first suspected abuse, the initial refusal of
the child to say that the husband had sexually
abused her, to a limited extent the interrogation
techniques employed by the wife and Constable
Anderson, and the husband's denials. On the other
hand, I do not consider that I am in a position to
say that the husband did not sexually abuse the
child. Indeed, the aggregate effect of the
evidence of the wife, Constable Anderson and
Miss Fitzgerald is such as to raise in my mind the
possibility that the child has been sexually abused
by the husband."

16. In order to "eliminate the risk that the child (might) be sexually abused", his Honour deprived the husband of access, including supervised access which, he thought, would not be of any benefit to the husband or the child.

17. The difference of opinion in the Full Court of the Family Court appears to have reflected in part differing appreciations of what the primary judge had decided. Nicholson C.J. emphasized that his Honour referred to his "lingering doubts" that the husband had sexually abused the child. On the other hand the majority, correctly in our opinion, read Gun J.'s judgment as a finding that "as a matter of practical reality", unless the order for access was discharged, there existed a risk that the child might be sexually abused and her welfare endangered. It is plain enough that the primary judge considered that the doubt that he had about the possibility that sexual abuse had taken place and might take place if the father were to have access to the child was of sufficient strength to warrant denial of access.

18. The appellant submits that, in this case as in other cases of custody or access involving allegations of sexual abuse, two issues arise. The first is whether the parent has sexually abused the child; the second is whether there is a risk, if custody or access be granted, of sexual abuse occurring. According to the appellant, the first issue is to be determined according to the civil standard of proof, on the balance of probabilities. The second issue is to be answered by reference to the test: is there a real and substantial risk of the child being sexually abused? To these propositions the appellant adds two others: first, that the primary judge is under a duty to determine the first issue; and, secondly, that, if the complainant fails on the first issue, then that is the end of the matter because the rejection of the complaint necessarily entails a negative answer to the second issue.

19. The basic flaw in the appellant's argument is to identify the allegation of sexual abuse as the paramount issue for determination by the court. In proceedings under Pt VII of the Act in relation to a child, the court is enjoined to "regard the welfare of the child as the paramount consideration" (s.60D). The paramountcy of this consideration in proceedings for custody or access is preserved by s.64(1). The consequence is that the ultimate and paramount issue to be decided in proceedings for custody of, or access to, a child is whether the making of the order sought is in the interests of the welfare of the child. The fact that the proceedings involve an allegation that the child has been sexually abused by the parent who seeks custody or access does not alter the paramount and ultimate issue which the court has to determine, though the court's findings on the disputed allegation of sexual abuse will naturally have an important, perhaps a decisive, impact on the resolution of that issue.

20. But it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. Proceedings for custody or access are not disputes inter partes in the ordinary sense of that expression: Reynolds v. Reynolds (1973) 47 ALJR 499; 1 ALR 318; McKee v. McKee (1951) AC 352, at pp 364-365. In proceedings of that kind the court is not enforcing a parental right of custody or right to access. The court is concerned to make such an order for custody or access which will in the opinion of the court best promote and protect the interests of the child. In deciding what order it should make the court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima facie in a child's interests to maintain the filial relationship with both parents: cf. J. v. Lieschke [1987] HCA 4; (1987) 162 CLR 447, at pp 450, 458, 462, 463-464.

21. Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court's determination of what is in the best interests of the child. The Family Court's consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court's wide-ranging discretion to decide what is in the child's best interests cannot be qualified by requiring the court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.

22. In considering an allegation of sexual abuse, the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v. Briginshaw [1938] HCA 34; (1938) 60 CLR 336, at p 362. There Dixon J. said:

"The seriousness of an allegation made, the
inherent unlikelihood of an occurrence of a given
description, or the gravity of the consequences
flowing from a particular finding are
considerations which must affect the answer to the
question whether the issue has been proved to the
reasonable satisfaction of the tribunal. In such
matters 'reasonable satisfaction' should not be
produced by inexact proofs, indefinite testimony,
or indirect inferences."

His Honour's remarks have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute. It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the court when it is called upon to decide what is in the best interests of the child.

23. No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.

24. In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case.

25. Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a "risk of serious harm" (A v. A (1976) VR 298, at p 300), "an element of risk" or "an appreciable risk" (Marriage of M (1987) 11 Fam LR 765, at p 770 and p 771 respectively), "a real possibility" (B. v. B. (Access) (1986) FLC 91-758, at p 75,545), a "real risk" (Leveque v. Leveque (1983) 54 B CLR 164, at p 167), and an "unacceptable risk" (In re G. (a minor) (1987) 1 WLR 1461, at p 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.

26. In the present case Gun J. was not satisfied that the husband had not sexually abused the child. We take that to mean that his Honour was not so satisfied according to the civil onus. On this footing his Honour was unable to exclude the possibility that the husband had so abused the child. His Honour obviously concluded that there existed an unacceptable risk that the child would be exposed to sexual abuse if the husband were awarded custody or access.

27. For the foregoing reasons the appeal must be dismissed.

ORDER

Appeal dismissed.